Practical details in connection with petitions for rehearing in Courts of Appeals.

JurisdictionUnited States

Section 147. Practical details in connection with petitions for rehearing in Courts of Appeals.—While, as has been indicated, the normal petition for rehearing in a Court of Appeals gets fairly short shrift, it does have one undeniable virtue, namely, that the time for certiorari runs, not from the date of the original opinion, but from the date of denial of rehearing.30 (There are refinements in respect of motions for modification of the judgment and second petitions for rehearing,31 but the general rule is unquestioned.) Consequently, the filing of a petition for rehearing extends the time for your client to raise additional funds for the next appellate step, and may increase the possibility that some other circuit will rule the other way and so produce a conflict. But these apparent advantages frequently collide with the requirement, imposed by the rules of most courts, that every petition for rehearing must have appended thereto a certificate of counsel that it is filed in good faith and not for purposes of delay.32

It has already been noted that in the Eighth Circuit a petition for rehearing is restricted to "directing the attention of the court to some controlling matter of law or fact which a party claims was overlooked in deciding a case." The limitation in the Court of Customs and Patent Appeals is to "points supposed to have been overlooked or misapprehended by the court."33 (Whether that formulation is really a limitation may well be doubted; every petition for rehearing urges, indeed screams, that the opinion just filed is full of misapprehensions.) At any rate, three courts—the Second, Eighth, and Tenth circuits—impose costs for vexatious petitions for rehearings.34

Since this is not a practice manual, there is no occasion in these pages to discuss stay of mandate, supersedeas, or bail pending appeal,35 nor to warn counsel that failure to make timely substitution of public officers will make the cause abate.36

Suppose, however, that you are winning counsel, relaxing in your office while savoring the eternal verities and soothing nuances of the opinion in your favor: Is there anything you should or can do when the opposition, ignorantly refusing to stay licked, files a petition for rehearing? Four circuits do not permit the filing of a response to a petition for rehearing,37 two plus the Court of Customs and Patent Appeals specifically allow a response,38 and the rules of the others are silent. In practice, two circuits will ask for a response...

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